CAN  THE  UNITED  STATES  BY 
TREATY  CONFER  ON  JAPANESE 
RESIDENTS  IN  CALIFORNIA 
THE  RIGHT  TO  ATTEND 
THE  PUBLIC  SCHOOLS? 


WILLIAM  DRAPER  LEWIS 

Dean  Law  Department , University  of  Pennsylvania 


REPRINTED  FROM  THE  AMERICAN  LAW  REGISTER  FOR  FEBRUARY \ 
rgof,  VOL.  55,  NO.  2. 


Copyright  by  University  of  Pennsylvania 
1907 


CAN  THE  UNITED  STATES  BY  TREATY  CONFER 
ON  JAPANESE  RESIDENTS  IN  CALIFORNIA 
THE  RIGHT  TO  ATTEND  THE 
PUBLIC  SCHOOLS? 

The  action  of  the  School  Board  in  San  Francisco  in 
requiring  the  Japanese  residents  of  that  city,  who  desire 
to  educate  their  children  in  the  public  schools,  to  send 
them  to  the  separate  school  provided  by  the  authorities 
for  the  education  of  the  children  of  Mongolian  parents, 
raises  an  interesting  question  of  the  proper  interpreta- 
tion of  the  rights  conferred  upon  Japanese  residents  by 
our  Treaty  with  Japan.  The  action  may  also  raise  the 
question  of  the  extent  of  the  treaty-making  power  con- 
ferred by  the  Constitution  on  the  Federal  Government. 

The  first  Article  of  our  Treaty  of  Commerce  and 
Navigation  with  Japan,  the  treaty  of  1894,  provides: 

“The  citizens  or  subjects  of  each  of  the  two  high  contracting  parties 
shall  have  full  liberty  to  enter,  travel  or  reside  in  any  part  of  the  ter- 
ritories of  the  other  contracting  party.  * * 

“In  whatever  relates  to  rights  of  residence  and  travel  * * * the 

citizens  or  subjects  of  each  contracting  party  shall  enjoy  in  the  ter- 
ritories of  the  other  the  same  privileges,  liberties  and  rights,  and  shall 
be  subject  to  no  higher  imposts  or  charges  in  these  respects  than  native 
citizens  or  subjects  or  citizens  or  subjects  of  the  most  favored  nation.” 

The  last  clause  of  the  second  Article  is  as  follows: 

“It  is,  however,  understood,  that  the  stipulations  contained  in  this 
and  the  preceding  Article  do  not  in  any  way  affect  the  laws,  ordin- 
ances and  regulations  with  regard  to  * * * police  and  public 

security  which  are  in  force  or  which  may  hereafter  be  enacted  in  either 
of  the  two  countries.” 

In  regard  to  the  proper  construction  of  this  Treaty  as 
applied  to  the  action  of  the  San  Francisco  School  Board, 
several  questions  arise. 

Is  the  right  of  the  inhabitants  of  San  Francisco  to  have 
their  children  attend  the  public  schools  a right  of  “resi- 
dence” within  the  meaning  of  that  word  as  used  in  the 
Treaty? 

Does  the  San  Francisco  School  Board  deny  to  Japanese 


.17538 


2 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

residents  the  same  “privileges,  liberties  and  rights”  of 
public  school  education,  as  it  gives  to  her  own  citizens 
or  the  citizens  of  other  countries,  being  residents  of  San 
Francisco,  by  requiring  Japanese  residents  to  send  their 
children  to  a separate  school? 

This  question  may  be  affected  by  the  location  of  and 
accommodation  in  the  separate  Mongolian  school  of  San 
Francisco.  We  understand  that  there  is  but  one  Mon- 
golian public  school  in  the  city. 

If  it  should  be  decided  that,  within  the  meaning  of  the 
Treaty,  a right  to  attend  a public  school  is  a right  of  resi- 
dence, and  that  the  action  of  the  San  Francisco  School 
Board  is  a denial  of  “the  same  privileges,  liberties  and 
rights”  in  respect  to  public  school  education  which  are 
granted  to  other  residents,  the  question  would  remain, 
whether  the  act  of  the  San  Francisco  authorities  could  be 
justified  under  the  clause  which  excepts  “ laws,  ordinances 
and  regulations  with  regard  to  police  and  public  security.  ” 

It  appears  to  the  writer  that  the  main  questions  re- 
lating to  the  proper  interpretation  of  the  Treaty  are  the 
first  two  as  stated. 

Should  the  courts  decide  that  the  action  of  the  School 
Board  did  violate  the  true  intent  and  meaning  of  the 
Treaty,  they  would  be  confronted  with  the  further  ques- 9 
tion:  Is  the  Treaty  constitutional?  If  the  treaty- 

making power  of  the  Federal  Government  is  limited,  and 
if  this  Treaty  in  conferring  on  Japanese  residents  in  the 
United  States  the  right  to  attend  the  public  schools  of 
a State  exceeds  those  limits,  the  Treaty  in  this  respect 
is  unconstitutional,  and  no  more  the  supreme  law  of  the 
land  than  an  unconstitutional  act  of  Congress.  The 
question,  “Can  a Treaty  override  the  Constitution?” 
is  to-day  as  absurd  as  the  question,  “Can  an  Act  of 
Congress  override  the  Constitution  ? ’ ’ The  treaty-making 
power,  as  the  legislative  power,  must  be  exercised  within 
those  limits,  if  any,  imposed  by  the  Constitution. 

The  difficulty  is  to  determine  the  extent  of  the  treaty- 
making power.  Is  it  an  unlimited  power  or  is  it  a limited 
power;  and,  if  limited,  what  are  the  limitations?  On 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  3 

the  answers  given  to  these  questions  depends  the  validity 
of  the  Japanese  Treaty,  supposing  that  that  Treaty  does 
in  terms  give  the  right  to  Japanese  residents  in  this 
country  to  send  their  children  to  the  public  schools  of 
the  State  in  which  they  reside, 

The  discussion  of  the  extent  of  the  treaty-making 
power  is  almost  wholly  an  academic  one,  the  Supreme 
Court  having  only  decided  one  point;  namely,  that  the 
treaty-making  power  of  our  Federal  Government  is  not 
confined  within  the  limits  of  the  legislative  power  of  that 
government.  That  can  be  done  by  treaty  which  cannot 
be  done  by  act  of  Congress. 

Thus  Chief  Justice  Marshall,  in  Chirac  v.  Chirac , as- 
sumed that  a treaty  regulating  the  rights  of  foreigners 
to  inherit,  purchase  and  hold  lands  in  Maryland,  was 
constitutional,  and  superseded  any  Act  of  the  State  con- 
flicting therewith.  Indeed,  the  constitutionality  of  the 
Treaty  was  not  questioned  by  council  or  court,  the 
argument  and  opinion  being  confined  to  its  proper  con- 
struction. The  same  assumption  had  already  been  made 
by  Story.  The  case  itself  was  several  times  confirmed 
during  the  time  of  Marshall,1  while  it  has  been  ex- 
pressly followed  in  more  recent  years.  That  an  Act  of 
Congress  could  not  regulate  the  right  of  foreigners  to 
purchase  and  hold  land  in  a State  is  beyond  controversy. 
The  widest  possible  extension  of  the  power  of  Congress 
“to  regulate  commerce  with  foreign  nations”  would  not 
give  to  that  body  the  power  to  pass  such  a law. 

The  conclusion  reached  from  the  cases  referred  to,  that 
under  the  treaty-making  power  that  can  be  done  which 
Congress  under  its  legislative  power  cannot  do,  is  still 
further  strengthened  by  the  long  acquiescence  of  all 


xThe  opinion  of  Judge  Story  is  that  given  by  him  in  Fairfax  v. 
Hunter's  lessee,  7 Cranch’s  Reports,  603  (1813);  Chirac  v.  Chirac  is 
reported  in  2 Wheaton’s  Reports,  259  (1817).  The  other  cases  affirm- 
ing Chirac  v.  Chirac  in  Marshall’s  time  are  Orr  v.  Hodgson , 4 Whea- 
ton’s Reports,  453  (1819);  Hughes  v.  Edwards , 9 ib.  489,  496  (1824); 
and  Carneal  v.  Banks , 10  ib.  181  (1825).  The  more  modern  case 
confirming  these  cases  is  Hauenstein  v.  Lynham,  100  United  States 
Reports,  483  (1879).  See  also  opinion  of  Mr.  Justice  Field  in  Geofroy 
v.  Riggs , 133  ib.  258,  at  page  266. 


4 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

Departments  of  the  Federal  Government,  and  of  the 
states,  in  extradition  treaties;  treaties  in  which  claims 
of  our  citizens  against  foreign  governments  have  been 
confiscated,  barred  and  satisfied;  trade-mark  conven- 
tions; and  treaties  giving  foreign  consuls  judicial  powers 
in  the  United  States,  or  United  States  consuls  judicial 
power  over  American  citizens  in  foreign  lands.  In  all 
these  treaties  will  be  found  provisions  which  Congress 
alone,  under  its  legislative  power,  could  not  enact.2 

On  the  other  hand  no  member  of  the  Supreme  Court, 
text  writer,  or  publicist  has  yet  taken  the  position  that 
the  treaty-making  power  of  our  Federal  Government  is 
absolutely  unlimited. 

The  three  main  Articles  of  the  Constitution  deal  re- 
spectively with  the  legislative,  executive  and  judicial 
departments.  The  clause  conferring  treaty-making 
power  is  in  the  second  Article.  This  Article  provides  that 
the  President  “shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided 
two  thirds  of  the  Senators  present  concur.  ” The  Con- 
stitution does  not  specify  the  subjects  in  regard  to  which 
treaties  may  be  made.  The  words  are  general ; the  Presi- 
dent and  the  Senate  have  the  power  to  make  treaties. 
There  is  a marked  difference  in  this  respect  in  the  manner 
in  which  the  second  Article  confers  the  treaty-making 
power  and  the  way  in  which  the  first  Article  confers  the 
power  of  legislation.  The  first  Article,  after  providing 
for  the  creation  of  . a legislative  body,  confers  on  that 
body,  not  the  power  to  legislate,  but  the  power  to  legis- 
late on  particular  subjects  which  are  carefully  enumerated. 

The  powers  conferred  by  the  first  Article  are  on  their 
face  legislative  powers  only.  They  neither  purport  to 
give  nor  take  away  any  power  which  the  President  and 
the  Senate  may  possess  in  respect  to  treaties.  This  fact 
is  the  justification  for  the  decisions  of  the  Supreme  Court 
to  which  reference  has  been  made.  Shortly  after  the 
Constitution  was  adopted,  when  the  Jay  Treaty  with 
England  was  under  discussion,  it  was  supposed  by  some 


aButler,  'I  reaty-making  Power,  chapter  ix. 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  5 

that  as  the  first  Article  conferred  on  Congress  the  power 
to  regulate  foreign  commerce,  under  the  treaty-making 
power  noncommercial  treaty  could  be  negotiated.  It 
was  soon  perceived,  however,  that  regulations  of  foreign 
commerce  could  be  the  result  either  of  an  act  or  a treaty, 
and  that  while  the  first  article  had  conferred  on  Congress 
legislative  power  ’^faich  enabled  them  to  regulate  foreign 
cdiumerce,  that  did  not  prevent  the  treaty-making  power 
from  being  so  exercised  as  to  produce  the  same  result. 
Since  then  the  proposition  that  the  treaty-making  power 
of  our  Federal  Government  is  neither  enlarged  or  con- 
tracted by  the  grants  of  legislative  power  in  the  first 
Article  has  never  been  seriously  questioned.  Taking 
these  first  two  Articles  of  the  Constitution  by  themselves, 
it  is  as  clear  that  general  treaty-making  power  is  con- 
ferred in  the  second  Article,  as  it  is  that  limited  legisla- 
tive power  is  conferred  in  the  first  Article.  If  it  be  ob- 
jected that  the  Constitution  does  not  in  express  terms  give 
to  the  Federal  Government  power  to  make  any  treaty  it 
sees  fit,  it  can  be  replied,  that  where  those  who  are 
sovereigns  confer  on  their  agents  one  of  the  great  powers 
of  sovereignty,  as  the  power  of  legislation  or  the  power 
to  make  a- treaty,  the  word  “all”  is  not  necessary  to 
explain  the  extent  of  the  power.  The  power  to  do  some- 
thing given  by  a spvereign  hand  is  the  power  to  do  it  in 
any  way  the  grantee  sees  fit.  The  argument  that  because 
the  word  “all”  does  not  precede  the- word  “power”  in 
the  clause  conferring  treaty-making  power  and  that  there- 
fore the  power  is  limited,  proves  too  much.  It  would 
show  that  the  words  in  the  second  Article  do  not  confer 
a power  to  make  a treaty  on  any  subject.  Not  only  is 
the  word  “all”  not  used,  but  none  of  the  subjects  on 
which  treaties  may  be  negotiated  are  referred  to. 

As  in  apparently  unambiguous  language  full  and  un- 
limited treaty-making  power  is  by  the  second  Article 
conferred  on  the  President  and  the  Senate,  the  burden 
is  on  those  who  contend  that  the  power  is  limited  to  prove 
their  case.  For  we  must  remember  that  if  the  Constitu- 
tion does  attempt  to  give  to  the  President  and  Senate 


6 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

an  unlimited  power  to  make  treaties,  the  attempt  has 
been  successful.  There  have  been  two  theories  in 
regard  to  the  adoption  of  the  Constitution  of  the  United 
States;  one  that  it  was  adopted  by  the  people  of  the 
United  States ; another  that  it  was  adopted  by  the  states. 
The  advocates  of  either  theory,  however,  agree  that  the 
power  which  adopted  the  Constitution  was  competent 
to  confer  on  the  government  created  by  the  Constitution 
all  the  powers  of  sovereignty.  The  source  from  which 
the  Constitution  sprang  is  a source  of  unlimited  power 
and  authority.  The  people  or  the  states  who  adopted 
it  could  give  to  the  new  government  that  they  created 
just  as  much  or  just  as  little  of  the  powers  of  sovereignty 
as  they  chose. 

Limitations  on  the  treaty-making  power,  if  any  exist, 
may  be  found,  either  in  the  nature  of  the  power,  or  the 
w^ords  of  the  Constitution.  Again,  limitations  may  possi- 
bly be  implied  from  the  fact  that  our  Constitution  was 
adopted  by  a free  people,  or  may  be  implied  from  the 
very  existence  of  the  states  as  an  intregal  part  of  our 
Federal  State. 

A moment’s  consideration  will  show  that  there  is  noth- 
ing in  the  nature  of  the  power  which  limits  its  operations 
to  particular  classes  of  subjects.  A treaty  is  a contract 
between  two  nations.  Treaties,  if  not  essential  to  foreign 
social  and  commercial  intercourse,  are  at  least  an  im- 
portant means  of  fostering  such  intercourse.  The  people 
of  a nation  regulate  their  conduct  towards  each  other 
by  those  customs  to  which  they  have  given  the  force  of 
law,  and  by  legislation;  but  much  of  their  conduct 
towards  the  people  of  another  nation  must  be  regulated 
by  treaty.  Thus,  the  binding  rules  of  conduct  of  any 
people  spring  from  three  sources,  custom,  legislation, 
and  treaties.  There  is  nothing  in  the  nature  of  any  of 
these  sources  of  law  which  prevents  any  particular  law 
from  having  its  origin  in  any  one  of  them.  The  wisdom 
of  the  contract  expressed  in  the  treaty  is  for  the  sovereign 
nations  who  are  parties  to  it  to  consider.  Being  sovereign, 
the  power  to  contract  knows  no  legal  limits.  If,  there- 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  7 

fore,  full  and  unlimited  treaty-making  power  is  given  to 
the  Federal  Government,  by  treaty  anything  can  be  done. 
There  is  nothing  in  the  nature  of  the  power  to  limit  the 
subjects  on  which  treaties  can  be  made. 

Though  the  treaty-making  power  is  not  limited  by  the 
nature  of  the  power,  it  is  limited  by  the  words  of  the 
Constitution. 

The  Constitution  creates  a government  with  three 
Departments,  the  legislative,  executive,  and  judicial, 
and  provides  to  a great  extent  for  their  organization. 
It  confers  on  each  certain  powers.  It  would  seem  almost 
an  axiom  of  Constitutional  Law  that  no  one  of  the  powers 
conferred  can  be  so  exercised  as  to  alter  the  Constitution. 
“A  power  given  by  the  Constitution,”  says  Judge 
Story,  “cannot  be  construed  to  authorize  a destruction 
of  other  powers  given  by  the  same  instrument.  * * * 

A treaty  to  change  the  organization  of  the  government 
or  annihilate  its  sovereignty,  to  overturn  its  republican 
form  or  to  deprive  it  of  its  constitutional  powers,  would 
be  void,  because  it  would  destroy  what  it  was  designed 
to  fulfill,  the  will  of  the  people.”3  The  treaty- making 
power,  as  all  other  powers  of  our  Federal  Government, 
is  necessarily  limited  to  the  extent  here  indicated.  By 
treaty  we  may  not  alter  the  Constitutional  distribution 
of  powers  between  the  three  Departments  of  our  Federal 
Government,  or  confer  on  any  Department  a power  not 
conferred  on  it  by  the  Constitution.  By  treaty  we  may 
not  agree  that  hereafter  Congress  should  legislate  on 
divorce,  or  that  the  treaty-making  power  itself  should 
be  executed  by  Congress ; or  that  a particular  State  should 
have  three  representatives  in  the  Senate. 

If  a treaty  cannot  alter  the  Constitution  as  written, 
a treaty  cannot  violate  any  specific  general  restriction 
on  federal  power  which  may  be  found  in  the  Consti- 
tution. The  first  eight  Amendments,  for  instance,  are 
prohibitions  against  specific  exercises  of  power.  In  all 
except  the  first,  the  prohibition  is  in  terms  general.  The 
second  Amendment  does  not  say  that  “Congress  shall 
not  pass  any  law,”  forbidding  the  people  to  bear  arms, 

3 Story  on  the  Constitutib^i,  section  1508. 


8 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

or  that  “the  executive  shall  not  interfere  with  this  right,’’ 
but  that  “the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed.”  A treaty  which  deprived  the 
people  of  this  right  would  be  apparently  in  direct  viola- 
tion of  the  express  words  of  the  Constitution. 

It  is,  however,  important  to  note  that  the  ioth  Amend- 
ment does  not  limit  the  treaty-making  power.  This 
Amendment  provides : “The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people.”  But  the  power  to  make  treaties  is 
expressly  given  to  the  United  States  by  the  Constitution, 
and  the  Constitution  also  expressly  prohibits  the  States 
from  exercising  the  treaty-making  power.  The  power 
to  make  treaties,  therefore,  is  not  one  of  the  powers 
“reserved  to  the  States  respectively,  or  to  the  people,” 
mentioned  in  this  Amendment. 

Again,  it  is  important  to  note  that  the  principle  that 
a treaty  cannot  alter  the  Constitution  as  written,  cannot 
be  extended  to  prohibit  treaties  dealing  with  subjects 
not  referred  to  in  the  Constitution.  It  may  be  that  there 
are  limitations  on  the  treaty-making  power,  arising  out 
of  the  fact  that  the  Constitution  was  adopted  by  a free 
people,  or  from  the  very  existence  of  the  states  as  a neces- 
sary part  of  the  Federal  system.  But  such  limitations, 
if  they  exist,  do  not  come  from  the  words  of  the  Consti- 
tution. For  instance,  it  is  admitted  that  a treaty  which 
conferred  on  Congress  the  right  to  regulate  marriage  and 
divorce  would  be  unconstitutional.  But  whether  the 
marriage  of  aliens  in  the  United  States  could  be  regulated 
by  treaty  is  a radically  different  question.  If  the  treaty- 
making power  cannot  deal  with  the  subject  of  the  marri- 
age of  aliens  in  the  United  States,  it  is  not  because  of 
anything  expressed  in  our  Constitution.  The  Constitu- 
tion confers  on  Congress  legislative  power  over  certain 
subjects.  The  marriage  and  divorce  of  natives  or  aliens 
in  a State  of  the  United  States  is  not  a subject  on  which 
Congress  has  been  given  power  to  legislate.  To  confer 
such  power  on  Congress  by  treaty  would  alter  the  Consti- 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  9 

tution  as  written.  But  to  regulate  divorce  by  treaty 
does  not  alter  the  Constitution  as  written.  As  has  been 
pointed  out,  the  Constitution  gives  to  the  President  and 
the  Senate  the  power  to  make  treaties.  It  does  not  say 
that  the  marriage  and  divorce  of  aliens  in  the  United 
States  shall  not  be  regulated  by  treaty.  There  is  no 
clause  in  the  Constitution  which  such  a treaty  would 
violate.  To  say  that  we  have  not  given  the  power  to 
legislate  on  divorce  to  Congress  and  therefore  that  it 
may  be  presumed  that  it  was  not  intended  to  confer  on 
the  President  and  Senate  the  power  to  regulate  the  sub- 
ject by  treaty,  is  to  take  the  position  that  the  grants  of  leg- 
islative power  limit  the  treaty-making  power ; a position 
which  has  been,  as  we  have  seen,  expressly  repudiated  by 
the  Supreme  Court.  If,  therefore,  there  is  no  power  to 
make  a treaty  on  the  subject,  the  want  of  power  must 
be  due,  not  to  anything  expressed  in  the  Constitution,  but 
to  some  implied  limitation  on  the  treaty -making  power. 

The  principles  on  - which  we  would  have  to  test  the 
validity  of  a treaty  on  the  marriage  and  divorce  of  aliens 
in  the  United  States,  also  applies  to  the  Treaty  under 
discussion.  Admitting  that  our  Treaty  with  Japan  pro- 
vides that  Japanese  residents  shall  have  a right  to  at- 
tend the  public  schools  of  a State,  it  is  evident  that  such 
treaty  does  not  violate  any  clause  of  the  Constitution  as 
written.  Such  a treaty  does  not  confer  on  Congress 
legislative  power  over  the  state  schools.  It  does  not 
increase  or  decrease  legislative  or  executive  power  as 
found  in  the  Constitution  or  violate  any  of  its  express 
prohibitions.  The  right  of  the  Federal  Government  to 
adopt  a treaty  of  the  character  indicated,  can  only  be 
denied  by  showing  that  such  a treaty  violates  an  implied 
limitation  on  the  treaty-making  power. 

The  people  of  the  United  States  are  organized  in  a 
Federal  State.  An  implied  limitation  on  a power  dele- 
gated to  the  Federal  Government  must  arise  out  of  the 
existence  of  some  implied  reserved  right  in  the  people 
of  the  United  States,  or  out  of  the  existence  of  some 
implied  reserved  right  in  the  states  considered  as  cor- 
porate entities. 


IO 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 


We  may  first  ask:  Are  there  any  implied  reserved 

rights  of  the  people  of  the  United  States  not  mentioned 
in  the  Constitution?  Our  Constitution  was  adopted  by 
a free  people  and  was  intended  for  their  government. 
The  first  eight  Amendments  specify  certain  rights  of  the 
people  of  the  United  States.  The  rights  specified  tend 
to  protect  individual  liberty  and  the  republican  form  of 
government.  Following  these  Amendments  the  9th 
Amendment  provides:  “The  enumeration  in  the  Con- 
stitution of  certain  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people.  ” The  wording 
of  this  Amendment  presupposed  the  existence  of  reserved 
rights  in  the  people  of  the  United  States  not  mentioned 
in  the  Constitution.  There  are,  therefore,  implied  limi- 
tations on  the  treaty-making  power  and  on  every  other 
power  of  the  Federal  Government  arising  out  of  the  fact 
that  the  Constitution  was  adopted  by  a free  people  im- 
bued with  the  importance  of  individual  liberty  and  firmly 
believing  in  democratic  institutions.  It  is  unnecessary 
to  discuss  specific  illustrations  of  possible  violations  of 
these  implied  limitations  on  the  treaty-making  power, 
for  a treaty  which  gives  to  aliens  the  right  to  attend  the 
public  schools  of  a State  does  not  violate  any  possible 
rule  of  law  designed  to  protect  the  liberty  of  the  citizens 
of  the  United  States  or  the  republican  form  of  govern- 
ment.4 

If  the  Treaty  under  discussion  does  not  violate  any 
part  of  the  Constitution  as  written,  or  any  implied  limi- 


4Mr.  Justice  White  in  his  concurring  opinion  in  Downs  v.  Bidwell, 
182  United  States  Reports,  244  (1900),  makes  an  elaborate  investi- 
gation of  implied  limitations  on  the  treaty-making  power  arising 
from  the  implied  reserved  rights  of  the  citizens  of  the  United  States. 
In  the  course  of  his  interesting  opinion  he  points  out  that,  at  the 
adoption  of  the  Constitution  the  United  States  consisted  of  a definite 
number  of  persons  inhabiting  a definite  territory,  all  of  which  terri- 
tory was  not  included  in  the  territory  belonging  to  the  original  thir- 
teen states.  From  this  fact,  coupled  with  the  free  character  of  our 
institutions,  be  believes  that  the  Federal  Government  is  impliedly 
restrained  from  parting  with  an  inch  of  the  territory  of  the  United 
States  which  was  part  of  the  United  States  at  the  adoption  of  the  Con- 
stitution or  which  has  since  been  incorpbrated  into  the  United  States, 
irrespective  of  whether  such  territory  is  or  is  not  part  of  a State.  He 
also  believes  that  while  territory,  and  the  people  inhabiting  it,  can  be 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  II 

tation  on  the  treaty-making  power  arising  out  of  the 
implied  reserved  rights  of  the  citizens  of  the  United 
States,  the  single  question  remains:  Does  it  violate  any 
implied  limitation  on  the  treaty-making  power  arising 
out  of  implied  reserved  rights  of  the  States? 

If  the  treaty-making  power  is  necessarily  limited  by 
the  nature  of  a Federal  State,  then  it  will  be  necessary 
to  go  outside  the  Constitution  to  ascertain  the  nature 
of  those  limitations,  and  whether  they  prohibit  the 
Central  Government  from  making  the  treaty  in  question. 
On  the  other  hand  if  there  is  nothing  in  the  nature  of  a 
Federal  State,  in  which  the  Central  Government  has  all 
the  treaty-making  power,  to  impose  implied  restrictions 
on  the  subjects  which  may  be  dealt  with  under  that 
power,  such  an  investigation  will  be  unnecessary. 

The  broad  question  whether  any  limitations  on  the 
treaty-making  power  arise  of  necessity  from  the  Federal 
nature  of  our  State  has  never  been  thoroughly  discussed. 
But  the  most  important  single  question  which  tests  the 
question  of  the  existence  of  such  a limitation,  the  right 
of  our  Federal  Government  by  treaty  to  cede  the  terri- 
tory of  a State  without  its  consent,  has  been  the  subject 
of  many  positive  and  conflicting  assertions.  Chancellor 
Kent  in  his  Commentaries;  Justice  McLean  in  Laitimore 
v.  Poteet , and  Mr.  Butler  in  his  work  on  the  Treaty- 
Making  Power,  are  all  of  the  opinion  that  such  a power 
exists.  On  the  other  hand,  Woolsey  in  his  work  on  In- 

acquired  by  the  United  States  by  treaty,  the  treaty-making  power 
cannot  be  so  used  as  to  incorporate  the  acquired  territory  into  the 
United  States,  or  make  the  inhabitants  of  such  territory  citizens  of 
the  United  States.  If  such  incorporation  of  territory  or  naturaliza- 
tion of  citizens  is  to  take  place,  the  implied  or  express  consent  of 
Congress  must  be  obtained. 

From  this  opinion  two  things  are  clear.  First,  the  absence  of  power 
in  the  Federal  Government  to  cede  any  territory  of  the  United  States 
is  not  ascribed  by  Mr.  Justice  White  to  the  fact  that  we  are  a Federal 
State.  The  same  limitation  on  the  power  of  our  national  government 
would  exist  had  we  never  had  separate  states,  but  as  one  people  had 
created  a national  government  by  the  adoption  of  the  Constitution. 
Second,  that  there  is  nothing  in  Mr.  Justice  White’s  opinion  inconsis- 
tent with  the  power  of  the  Federal  Government  by  treaty  to  confer 
on  Japanese  residents  the  right  to  attend  the  public  schools  of  a state. 
Such  treaty  does  not  make  the  Japanese  citizens  or  confer  on  them 
political  rights,  or  incorporate  territory  into  the  United  States. 


12 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 


ternational  Law,  and  the  late  Justice  Field  of  the  Supreme 
Court,  deny  the  power.5 

The  greater  power  includes  the  less.  If  it  can  be  shown 
that  there  is  nothing  in  the  nature  of  a Federal  State  to 
prevent  the  treaty-making  power  from  ceding  part  or 
all  of  the  territory  of  a State  to  a foreign  power,  there  is 
certainly  nothing  in  the  nature  of  such  a State  to  prevent 
the  subjects  of  a foreign  power  from  being  given  by 
treaty  the  right  to  attend  the  public  schools  of  the  State. 
In  the  second  case  a State  is  merely  required  to  devote 
a part  of  its  property,  set  aside  for  the  education  of  native 
residents,  to  the  education  of  foreign  residents;  but  in 
the  first  the  State  itself  is  destroyed. 

The  sole  force  which  creates  confederacies  is  usually 
pressure  from  abroad.  The  separate  states  realize  that 
as  independent  units  they  cannot  continue  to  exist.  A 


sThe  authorities  spoken  of  in  the  text,  as  in  favor  of  the  power 
are:  Kent’s  Commentaries,  vol.  i,  167,  note  b;  Lattimore  v.  Poteet , 
14  Peter’s  Reports,  4 (1840),  at  pages  13,  14;  Butler’s  Treaty-Making 
Power  in  the  United  States,  Chapter  XVI.  Those  given  as  opposed 
to  the  power  are:  Woolsey’s  Introduction  to  the  Study  of  Interna- 
tional Law,  section  103,  p.  161.  Opinions  of  Mr.  Justice  Field  in  Fort 
Leavenworth  R.  R.  Co.  v.  Lowe , 114  United  States  Reports,  at  pages 
540,  541;  and  in  Geojroy  v.  Riggs,  133  ib,  at  page  267. 

As  has  been  pointed  out  in  note  4,  Mr.  Justice  White  denies  the 
power  of  the  Federal  Government  to  cede  any  territory  of  the  United 
States,  but  he  does  not  take  this  position  because  of  any  reserved 
right  in  the  States. 

It  has  been  often  asserted  that  Webster  was  of  the  opinion  that 
the  Federal  Government  could  not  cede  the  territory  of  a State  with- 
out its  consent.  When  questions  arose  over  the  northeastern  bound- 
ary in  Maine  between  Great  Britain  and  the  United  States,  the  Fed- 
eral Government  asked  Maine  and  Massachusetts  to  appoint  commis- 
sioners to  co-operate  with  the  Federal  Government,  expressly  stat- 
ing that  no  treaty  would  be  submitted  to  the  Senate  unless  it  receive 
the  unanimous  approval  of  the  State  Commissioners.  Webster,  at 
the  time  Secretary  of  State,  wrote  the  letters  directed  to  the  Governors 
of  Maine  and  Massachusetts,  inviting  them  to  appoint  Commissioners. 
In  these  letters  he  states  that  it  is  the  duty  of  the  Federal  Government 
not  to  take  action  without  the  consent  of  the  two  states  whose  rights 
are  more  immediately  concerned.  But  the  legal  duty  of  the  Federal 
Government  and  the  legal  right  of  the  States  are  not  discussed  by 
Webster.  In  view  of  the  then  existing  relations  between  the  adminis- 
tration and  the  Senate,  it  was  important  to  secure  the  co-operation 
of  those  states  likely  to  be  affected  by  the  proposed  boundary  Treaty, 
before  actually  negotiating  such  a treaty,  if  the  Treaty  when  nego- 
tiated was  to  receive  the  necessary  two-thirds  vote  in  the  Senate. 

The  letters  referred  to  will  be  found  in  Webster’s  Works,  vol.  VI, 
pages  272,  273.  See  also  Webster’s  defence  of  the  Treaty,  ib.,  vol. 
V,  page  98. 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  1 3 

Federal  State  owes  its  origin  to  this  desire  for  protection 
from  foreign  aggression  on  the  part  of  the  individual 
states,  plus  a desire  for  untrammelled  interstate  inter- 
course. Thus  in  a Federal  State,  the  necessity  for  pre- 
senting a united  front  to  foreign  nations, while  not  the  sole, 
is  a prime  cause  of  the  very  existence  of  the  State  itself. 

The  separate  states  of  our  union,  for  instance,  could 
not  exist  as  separate  nations.  The  weaker  would  become 
the  prey  to  the  stronger,  the  strongest  would  be  open  to 
foreign  insult  and  aggression.  This  is  true  to-day;  it 
was  true  at  the  time  of  the  adoption  of  the  Constitution. 
The  people  of  South  Carolina  by  entering  the  union,  or 
the  people  of  California  by  being  in  the  union,  are  much 
more  likely  to  be  effectually  protected  from  foreign  in- 
vasion or  personal  insult  in  their  dealings  with  foreigners, 
than  if  these  states  were  sovereign  and  independent. 

Protection  from  foreign  aggression,  therefore,  was  one 
of  the  principle  causes  which  led  to  the  formation  of  our 
union.  And  it  has  been  asked:  Is  there  not  from  this 
fact  an  implied  reservation  on  any  power  granted  to  the 
Federal  Government  that  it  shall  not  be  so  used  as  to 
destroy  one  of  the  very  purposes  for  which  the  State 
consented  to  join  the  Union?  Others  go  further,  and 
say  that  as  the  regulation  of  a state’s  internal  affairs  by 
the  Federal  Government  was  evidently  not  one  of  the 
objects  of  the  Union,  any  power  granted  to  the  Federal 
Government  cannot  be  so  exercised  as  to  regulate  what 
is  rather  indefinitely  called  the  “reserved  police  rights  of 
the  States.”6  It  is  assumed  that  carefully  limited 


6The  idea  that  the  treaty-making  power  of  any  power  delegated  to 
the  United  States  cannot  be  exercised  so  as  to  regulate  that  which 
the  States  may  regulate  under  their  reserved  power  was  of  course 
often  expressed  in  the  ante  bellum  period.  See  opinion  of  Mr.  Justice 
Daniel  in  the  License  Cases,  5 Howard’s  Reports,  504  (1847)  at  page 
613;  the  dissenting  opinion  of  Chief  Justice  Taney  in  the  Passenger 
Cases,  7 Howard’s  Reports,  283,  (1849)  at  pages  465,  466.  These 
opinions  reflect  the  ideas  of  Calhoun.  See  Calhoun’s  Works,  edited 
by  Cral  16,  vol.  1,  pages  454,  455.  In  our  own  day  Mr.  John  Randolph 
Tucker  has  expressed  somewhat  similar  views.  See  Tucker  on  the 
Constitution  of  the  United  States,  vol.  2,  section  354.  These  views 
are  directly  contrary  to  the  opinion  of  Chief  Justice  Marshall  in  Gib- 
bons v.  Ogden,  9 Wheaton’s  Reports,  1,  (1824)  at  page  204,  and  are 
opposed  to  the  current  of  modern  authority. 


14  JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

legislative  power  and  largely  unlimited  treaty-making 
power  in  the  same  government  is  an  absurdity. 

That  our  Constitution  should  carefully  guard  and  limit 
the  legislative  power  of  the  Federal  Government  is  most 
natural.  The  regulation  of  interstate,  not  state  com- 
merce; protection  to  the  United  States  as  a nation,  not 
regulations  of  the  internal  affairs  of  the  States,  are  ob- 
jects of  the  union.  General  legislative  power  in  the 
Federal  Government  was  unnecessary  to  accomplish  the 
ends  in  view’.  But  the  power  to  deal  with  foreign  nations 
as  a unit;  to  secure  as  a unit  in  time  of  peace  the  best 
commercial  treaties  possible;  as  a unit  to  make  wrar,  if 
war  was  necessary ; and  as  a unit  to  make  the  best  peace 
possible,  if  peace  was  necessary;  all  these  wTere  prime 
objects  of  the  union,  and  they  are  objects  which  cannot 
be  obtained  by  conferring  a treaty-making  powTer  limited 
and  fettered  in  the  way  it  was  both  wise  and  feasible  that 
the  Federal  legislative  power  should  be  fettered.  Take 
even  the  power  to  part  by  treaty  with  the  territory  of  a 
State.  The  probability  that  the  new  nation  wrould  sooner 
or  later  be  engaged  in  war  was  present  to  the  minds  of 
those  who  adopted  our  Constitution.  Wars  are  ended 
by  treaties  of  peace.  The  spectacle  of  a nation  being 
obliged  to  purchase  peace  by  the  cession  of  territory  is 
not  rare.  Before,  as  well  as  since,  the  adoption  of  our 
Constitution,  other  nations  have  often  had  to  purchase 
peace  by  the  cession  of  territory.  Germany  demanded 
Alsace  and  Lorraine  as  the  price  of  withdrawing  their 
troops  from  Paris.  The  experience  of  France  is  not 
unique.  Though  we  are  now  a powerful  nation  removed 
probably  for  many  decades  to  come  from  the  fear  of 
foreign  invasion,  we  have  in  the  course  of  our  short 
history  seen  a foreign  power  in  possession  of  our  national 
capitol.  If  by  entering  a union  with  other  States,  a State 
renders  it  legally  possible  for  the  Central  Government 
to  sacrifice  her  territory  or  her  complete  control  over  her 
police  arrangements  to  protect  the  territory  of  other 
States,  she  also  gains  the  reciprocal  advantage  of  being 
able  to  save  herself  and  the  great  majority  of  the  other 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  1 5 

States  by  sacrificing  the  territory  of  a sister  State.  Such 
an  arrangement  is  not  one-sided. 

Take  the  specific  case  under  consideration.  The  power 
to  admit  or  exclude  aliens  from  the  territory  of  a State 
unquestionably  resides  in  our  Federal  Government.  The 
Federal  Government  has  the  exclusive  power  of  natu- 
ralization. When  the  States  have  already  given  to  the 
Central  Government  the  power  to  admit  aliens  and  make 
them  citizens,  entitled  to  all  the  rights  and  privileges  of 
citizenship,  there  is  nothing  unreasonable  in  their  also 
conferring  on  that  government  the  power  to  give  aliens, 
after  admission  to  a State  and  before  naturalization,  the 
right  to  be  admitted  to  her  public  schools. 

To  allow  a bare  majority  of  the  Federal  Legislature  to 
make  a treaty  which  might  have  these  results  would  have 
been  unwise.  Our  Constitution  has,  therefore,  required  - 
that  at  least  two  thirds  of  the  Senate  present  shall  be 
required  to  ratify  a treaty.  The  Senate  is  that  body 
which  primarily  represents  the  States.  Such  a provision 
has  proved  by  experience  an  ample  protection  against 
the  unwarranted  sacrifice  by  treaty  of  the  interest  of  any 
one  State.  To  have  required  the  unanimous  consent  of 
the  Senate  would  have  rendered  it  practically  impossi- 
ble for  any  treaty  to  be  negotiated. 

The  fact  that  we  are  a Federal  State,  that  we  have 
only  conferred  on  our  Federal  Government  limited  legis- 
lative power,  that  the  cession  of  territory  or  the  regula- 
tion of  the  internal  affairs  of  the  States  was  not  an  object 
for  which  our  union  was  formed,  or  for  which  it  exists, 
does  not  lead  to  the  conclusion  that  the  treaty -making 
power  is  impliedly  limited  by  a rule  which  would  prevent 
either  the  cession  of  the  territory  of  a State  to  a foreign 
power,  or  an  interference  by  treaty  with  the  police  powers 
of  the  States.  On  the  contrary,  to  impose  implied  limits 
of  this  kind  would  seriously  interfere  with  one  of  the 
great  objects  of  the  union — the  capacity  to  deal  as  one 
people  with  foreign  nations. 

It  is,  of  course,  admitted  that  the  mere  fact  that  the 
power  claimed  to  exist  in  our  Federal  Government  is 


1 6 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

necessary  to  accomplish  a principal  object  of  the  Union, 
is  not  a reason  why  we  should  assume  that  it  has  been 
conferred.  But  where  a power,  as  the  treaty-making 
power,  has  been  in  general  terms  conferred  on  the  Federal 
Government,  to  limit  the  power,  not  by  any  words  in 
the  Constitution  but  by  a limitation  implied  from  the 
supposed  nature  of  our  Federal  State,  it  is  necessary  to 
show  affirmatively  that  the  limitation  proposed  arises 
from  the  very  nature  of  the  State  itself.  If  this  cannot 
be  done,  but  on  the  contrary  an  examination  of  the 
forces  creating  our  Federal  State  show  that  one  of  the 
prime  objects  of  our  union  would  be  defeated  by  the 
proposed  implied  reservation,  no  such  reservation  may 
be  implied. 

If  these  conclusions  are  correct,  our  Federal  Govern- 
ment has  under  the  Constitution  power  to  make  a treaty 
with  Japan  or  any  other  foreign  nation,  giving  to  the 
subjects  or  citizens  of  the  foreign  nation  residing  in  one 
of  the  States  the  right  to  attend  the  public  schools  of  the 
State  on  the  same  terms  as  native  or  naturalized  citizens. 
In  the  Constitution  itself  we  find  nothing  to  restrain  the 
President  from  negotiating,  and  two  thirds  of  the  Senate 
from  ratifying  such  a treaty.  It  is  not  opposed  to  the 
fundamental  characteristics  of  free  republican  govern- 
ment ; it  does  not  interfere  with  the  liberty  of  the  citizens 
of  the  United  States;  and  finally,  there  is  nothing  in  the 
nature  of  our  Federal  State  from  which  we  may  imply 
any  limitation  on  the  treaty-making  power  not  found  in 
the  words  of  the  Constitution.  Whether  we  have  actually 
made  such  a treaty  with  Japan  is  another  question. 
Whether,  admitting  that  we  have  made  such  a treaty, 
it  was  a proper  or  wise  treaty  to  make  is  foreign  to  this 
discussion. 

A power  may  be  abused  by  those  who  possess  it,  but 
this  in  itself  is  no  reason  for  denying  the  existence  of  the 
power.  The  confusion  which  has  existed  on  the  subject 
of  the  treaty-making  power  in  our  Constitution  has 
arisen  largely  through  confusing  the  letter  of  the  Constitu- 
tion with  the  spirit  which  should  animate  those  rcspon- 


JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS.  1 7 

sible  for  the  conduct  of  our  State  and  Federal  Govern- 
ments. There  are  many  acts  which  our  Federal  or  State 
Governments  may  constitutionally  do  which  would  un- 
questionably violate  the  spirit  of  the  agreement  which 
makes  us  a nation.  If  the  Federal  Government  should 
arbitrarily  barter  away  the  territory  of  a State  without 
its  consent,  no  one  doubts  that  the  State  affected  would 
be  morally  justified  in  resisting  the  transfer  by  force. 
But  the  possible  arbitrary  exercise  of  a power  while  it 
may  morally  justify  revolution,  does  not  prove,  or  even 
tend  to  show,  that  the  power  does  not  exist.  There  is 
no  proposition  of  our  Constitutional  law  more  firmly 
established  than  this:  Given  a power  in  a Department 
of  the  Federal  Government,  and  that  Department,  not 
the  court,  is  the  sole  judge  of  the  conditions  under  which 
the  power  should  be  exercised.  If  by  treaty  we  have 
not  power  to  adjust  the  boundary  between  the  United 
States  and  a foreign  state,  without  the  consent  of  the 
particular  State  whose  territory  is  affected,  the  possi- 
bility of  warding  off  a war  by  such  an  adjustment  would 
not  legally  justify  making  such  a treaty  without  the 
concurrence  of  the  State.  The  recklessly  selfish  attitude 
of  the  particular  State  involved  would  be  no  legal  defense 
for  such  a treaty.  On  the  other  hand,  if  the  power  exists, 
the  President  and  Senate  are  the  sole  judges  of  the  time 
and  manner  in  which  it  may  be  exercised. 

There  is  a letter  of  the  Constitution  and  a spirit  of  the 
Constitution.  The  Courts  have  always  recognized  that 
their  concern  is  with  the  Constitution  as  written.  If 
this  rule  was  broken  and  our  judges  permitted  themselves 
to  wander  into  the  uncertain  realm  of  the  spirit  of  the 
Constitution  we  would  soon  have  acts  and  treaties  set 
aside  by  Courts  because  the  judges  believed  their  provi- 
sions were  unnecessary. 

The  spirit  of  our  Constitution  is  plain.  It  is  that  in 
the  exercise  of  what  may  be  an  undoubted  power,  the 
members  of  the  Federal  or  State  Governments  should 
remember  that  the  whole  should  as  far  as  possible  avoid 
injuring  a part,  and  that  the  part  should  as  far  as  may  be 


1 8 JAPANESE  RIGHTS  IN  PUBLIC  SCHOOLS. 

avoid  injuring  the  whole.  The  cultivation  of  such  a 
spirit  is  essential  to  our  preservation  as  a Federal  State. 
But  whether  it  is  or  is  not  violated  by  a particular  act 
or  treaty  is  for  the  body  wdiich  passes  the  one,  or  for  the 
President  and  Senate  which  negotiates  and  confirms  the 
other,  alone  to  decide. 

Wm.  Draper  Lewis. 

University  of  Pennsylvania. 


